What Are Moral Rights?

Q.  I have been given a contract that requires me to waive “moral rights” in my work.  What am I giving up?  I consider myself a moral person.

A.   Moral rights actually have nothing to do with what morality – i.e.,  principles concerning right and wrong, or good and bad behavior.  Instead, moral rights are a bundle of rights dealing with the protection of the reputation of a an author.  Moral rights received their fullest expression in French and German law, and were incorporated into the 1928 Berne Convention for the Protection of Literary and Artistic Works.  They include two primary rights:

  • right of attribution — the right to have the author have his/her name attached to a work; and
  • right of integrity – the right to prevent distortion, mutilation, or other modification of the work the would prejudice the author’s honor or reputation.

Don’t confuse moral rights with the economic rights involved with copyright. Even if an author or artist has assigned his/her rights to a work to a third party such as a publisher, s/he still maintains the moral rights to the work. Each of these moral rights are perpetual, inalienable, and descend to the heirs of the author.

For authors, moral rights obviously are a good thing, but unfortunately they are recognized only partly in the U.S.  Although the U.S. adopted the Berne Convention in 1998, the Congressional implementing language specifically prohibited any person in the U.S. from relying on any right or interest specified in the Berne Convention.  All intellectual property rights in the U.S. must derive exclusively from U.S. law.  Congress’ rationale for this legislative self-centeredness was that rights “equivalent” to moral rights already existed under the Lanham Act provisions against  misrepresentation and unfair competition, and under general defamation law.

In 1990, however, Congress passed the Visual Artists Rights Act, which specifically gave authors of paintings, drawings, sculpture, and photographs the rights of attribution and integrity.  Obviously, if existing law really did protect moral rights of authors, the Act would not have been necessary.  But as it stands now, authors of literary and musical works do not have moral rights in the U.S.

Also be aware that some countries, such as France, have included in their national law additional moral rights such as the right of disclosure (author has final decision on when and where to publish); the right to withdraw or retract; and the right to reply to criticism.

The reason your contract waived your moral rights is simple – the publisher wishes to prevent you from exercising those rights in those countries that do recognize moral rights.